by W. Anthony Andrews (Winter 2018)

Illinois has long held that public bodies are immune from liability for conduct that was of a discretionary matter. So, where a municipality deliberately evaluates whether to spend some of the resources to repair a public structure, like a sidewalk slab, it cannot be liable for a subsequent injury arising from it. However, the Illinois Supreme Court recently decided a case involving the Local Governmental and Government Employees Tort Immunity Act (Act) (745 ILCS 10/2-109, 2-201) that provided that discretionary immunity, but also restricted it.

In Monson v. City of Danville, 2018 IL 122486, Barbara Monson sued the City of Danville after she tripped and fell on a disjointed sidewalk and sustained serious injury. Prior to her fall, City officials had begun a project designed to repair sections of concrete throughout the City. The City made decisions to repair sidewalks based on height between varying sidewalks, how frequently the pathway was traveled, proximity of the potential sidewalk defect to buildings, intended use of the area, etc.

The City began this project to repair defective pavement and streets in the fall of 2011. Two City employees conducted walkthroughs of all the affected areas and marked portions of the sidewalk that needed repair. These two employees then made the decision not to mark the specific area of sidewalk that eventually caused Monson’s injury.

When sued, the City argued that it was entitled to immunity pursuant to Sections 2-109 and 2-201 of the Act. The City claimed that the decision not to repair the portion of the sidewalk that caused Monson’s injury was discretionary, and thus immunized them from liability, because the decision to repair or not repair certain segmentations of sidewalk is a matter of public policy.

To evaluate the issue, the court compared the facts to Richter v. College of DuPage, 2013 IL App (2d) 130095, where a student filed a lawsuit against College of DuPage after tripping and falling on a sidewalk. In the Richter case, the manager of the building had complete control of the building and the grounds. Further, this manager was notified of the defect prior to the plaintiff’s accident because someone else tripped and injured themselves in the same location.

The Richter case also contained record of all decision-making processes including the decision to put up cones, paint the sidewalk yellow, etc. Therefore, the court in Richter held that the building manager’s handling of the sidewalk defect was an exercise of discretion and constituted a policy determination under Section 2-201 of the Act.

The facts of Richter differed from Monson because the manager in Richter had total control over the property, executed a clear decision-making process, and was notified of the defect. On the other hand, in Monson, the record provided no evidence of the City’s thought-process in deciding to not repair the sidewalk. In fact, the two City workers involved in the inspections could not remember if they evaluated the specific site where Monson fell. Therefore, the court held that the city had not met its burden of proof entitling it to discretionary immunity under Sections 2-109 and 2-201.

Essentially, the Illinois Supreme Court held that a public entity claiming immunity for a defect must present evidence that the public entity itself made the conscious decision to forego repairing the defect. Here, two City employees made the decision to leave the sidewalk defects as-is. The decision to forego repairs was the employees’ decision and not the City’s decision. Further, the City did not present any evidence detailing the rationale as to why the City did not repair certain sidewalks. Therefore, the court declined to find that that discretionary immunity applied.

While public bodies are still immune for failing to repair a public structure if it made a conscious decision not to do so, where that public body seeks to apply this immunity, it must produce compelling evidence that it specifically evaluated the defect.